Discrimination against public sector LGBT employees

Discrimination against State and Local Government LGBT Employees: An Analysis of Administrative Complaints

By Christy Mallory and Brad Sears

ABSTRACT

This article documents evidence of recent discrimination against LGBT public sector workers by analyzing employment discrimination complaints filed with state and local administrative agencies. We present information about 589 complaints of sexual orientation and gender identity discrimination filed by public sector workers in 123 jurisdictions. We find that discrimination against LGBT people in the public sector is pervasive, and occurs nearly as frequently as discrimination in the private sector, and at rates similar to discrimination based on sex and race. Currently, no federal law prohibits discrimination against LGBT people, and most states do not have laws prohibiting such discrimination.

INTRODUCTION

There are slightly more than 1 million LGBT people working for state and local governments in the United States, and approximately 200,000 LGBT federal civil service employees. LGBT people employed in the public sector have faced a long history of discrimination in the workplace dating back to at least the 1940s. Currently, LGBT people continue to face severe, and even violent, harassment and discrimination in government workplaces.

Legal protection from discrimination for these employees remains an incomplete and complicated patchwork. Currently, no federal law explicitly prohibits discrimination based on sexual orientation or gender identity. However, the Supreme Court has interpreted Title VII’s prohibition on sex discrimination to protect against discrimination based on sex stereotypes, and several lower courts and the EEOC have interpreted the provision to also prohibit discrimination based on gender identity. These interpretations have allowed some LGBT employees to bring successful cases under Title VII. LGBT employees of state and local governments have also found some protection under the U.S. Constitution, but, to date, courts have applied only rational basis review to employment decisions based on sexual orientation—the most lenient form of scrutiny. However, one federal circuit court decision suggests that gender identity discrimination, like sex discrimination, is to receive a more rigorous form of review. At the state level, most states do not have statutes prohibiting sexual orientation or gender identity discrimination.

In those states and localities that have laws explicitly prohibiting discrimination against LGBT people, data on the number of complaints filed under such laws show that employees are using the laws to seek remedies for discrimination they experience at work. Additionally, two studies by the Williams Institute demonstrated that when the number of complaints is adjusted for the number of people with a particular minority trait, the rate of complaints filed alleging sexual orientation discrimination in employment is nearly as high as the rate of complaints filed by women and people of color on the basis of sex or race.

The current study updates past research on employment discrimination complaints filed with state and local administrative agencies by LGBT people who work for state or local governments. The study is based on a survey of 20 states and 201 localities that had sexual orientation and gender identity non-discrimination laws as of June 2009. Of these jurisdictions, 123 responded to the survey and provided information about 589 complaints filed by public sector employees. In states and localities that provided information about a final administrative decision reached in the case, favorable outcomes for the employees resulted in an average of 12% of the state filings and 19% of the local filings. When we adjust the number of complaints for the relevant population, using a methodology similar to the Williams Institute studies, we find that sexual orientation filings with state agencies are slightly lower, but similar, for employees in the public sector when compared to the private sector.

Several factors suggest that the actual rate of workplace discrimination against LGBT people may be higher than what was found in the analysis. First, we found evidence that some state and local agencies lack the resources and staff necessary to effectively enforce non-discrimination laws. Second, LGBT people may be hesitant to file complaints because of a perception of judicial unresponsiveness. Third, LGBT people may choose not to file complaints in order to avoid further “outing” themselves in the workplace. Finally, research suggests that many of these matters are handled internally before formal legal enforcement procedures become necessary.